Court sets voter-ID law aside for November elections

Philadelphia City Commissioner Stephanie Singer celebrates the court ruling on the state voter-ID law. Critics of the law argued that it could suppress turnout in heavily Democratic areas such as Philadelphia and that its implementation was rushed to affect the outcome of the presidential election. (APRIL SAUL / Staff)

By Angela Couloumbis, Inquirer Harrisburg Bureau

Posted: October 04, 2012

HARRISBURG - Pennsylvania voters who go to the polls without photo identification will be able to vote in next month's presidential election after all.

They won't even have to fill out provisional ballots.

So ruled a Commonwealth Court judge Tuesday in the closely watched legal battle over Pennsylvania's controversial voter-ID law. Judge Robert E. Simpson Jr. upheld the law - but blocked it from taking full effect in the Nov. 6 election.

In essence, the rules remain as they were during the law's so-called "soft roll-out" in the April primary: Voters will be asked for the photo ID required by the new law, but if they don't have it, they can still vote.

Whether Simpson's ruling is the last word was not yet clear. Corbett administration officials said Tuesday through spokesmen that they had not yet decided whether to mount an appeal.

Critics of the law, including numerous Democratic officeholders, exulted over Simpson's ruling, saying it will help ensure that all voters will get an equal shot at having their voices heard this fall.

In the same breath, however, they signaled concern that if the state continues its aggressive education campaign on the voter-ID law, many voters may be confused.

"Anytime you have confusion on Election Day, it's not good for democracy," said Witold "Vic" Walczak, state legal director for the ACLU and one of the attorneys for the plaintiffs, who include several voters as well as the NAACP, the League of Women Voters, and other groups.

Nonetheless, Walczak was among a long line of voter ID critics who praised Simpson's decision as a win for voters.

"Voters will be able to vote with a regular ballot," he said, ". . . and I think that is a huge victory."

Pennsylvania officials who have supported the law, among them Gov. Corbett, had a more guarded reaction. And they did not directly answer a key question: whether they will appeal Simpson's decision to the state Supreme Court.

Commonwealth Secretary Carol Aichele, Pennsylvania's top election official, seemed to send strong signals that the state would probably not appeal.

"The same procedure will be in effect for this election as for the spring primary, in that voters will be requested to show ID, but ID will not be required to vote," Aichele said in a statement.

She added: "This law is designed to preserve the integrity of every vote by doing what we can to make sure each voter is who they claim to be at the polls, and we are confident this law will be fully implemented in future elections."

In a Tuesday morning interview on WHYY-FM, when Aichele was asked if the state would appeal the ruling, she said: "I suppose there's always a chance."

State officials also were circumspect on what changes they may make to radio and television ads now airing across the state telling voters they must show photo ID at the polls Nov. 6. The same message - rendered obsolete by Simpson's ruling - was on mailings already sent to millions of registered voters. Pennsylvania has spent nearly all of the $5 million in federal voter-education funds it had allotted for public outreach on the voter-ID law.

On Tuesday, it was unclear what steps might be taken to revise the message, and at what cost, and at whose expense.

"It is likely we will pull the TV and radio ads," said Ron Ruman, spokesman for the Department of State. "But we're still in the process of working that out."

In his decision, Simpson credited state officials with trying mightily to guarantee voters the kind of "liberal access" to state-issued photo IDs that the state Supreme Court has said the law requires. But he concluded, in essence, that not enough time remains to get it right by the time the polls open Nov. 6.

"Five weeks before the general election," he wrote, "I question whether sufficient time now remains to attain the goal of liberal access."

With that in mind, the judge set the stage for a fall election governed by the same rules as the primary ("exactly the same," as Aichele put it Tuesday), when voters were asked for photo ID at the polls but none were turned away for not having one.

He did so by enjoining the portion of the law, known as Act 18, that deals with provisional ballots.

When the Republican-controlled legislature passed the law in March, it said voters who did not bring proper photo ID on Election Day could cast a provisional ballot. They would then have six days to bring in the required photo ID in order for their vote to count.

Simpson found, as he had in a previous ruling, that the law does not disenfranchise voters simply by requiring poll workers to ask for photo ID. The problem, he said - echoing a point he made during hearings last week - comes after Election Day, when a voter who has cast a provisional ballot cannot obtain the necessary ID in time to persuade election officials to count his or her vote.

"I reject the underlying assertion that the offending activity is the request to produce photo ID," Simpson wrote. "Instead, I conclude that the salient offending conduct is voter disenfranchisement."

As a result, Simpson decided that for the Nov. 6 election only, voters without appropriate photo ID can cast a regular ballot and will no longer have to produce photo identification within six days.

The law's sponsor, State Rep. Daryl Metcalfe (R., Butler), blasted the ruling Tuesday and branded it an example of judicial activism.

"Judge Simpson's final decision is out of bounds with the rule of law, constitutional checks and balances for the individual branches of state government, and most importantly, the will of the people," Metcalfe said, adding that the ruling was "skewed in favor of the lazy who refuse to exercise the necessary work ethic to meet the commonsense requirements to obtain an acceptable photo ID."

The ACLU's Walczak called those comments "offensive" and urged Metcalfe to review testimony given during last week's hearings before Simpson. Voters from across the state described headaches and hardships in trying to obtain state-issued IDs through the Pennsylvania Department of Transportation, including the voting-only card with its less-stringent proof-of-identity requirements that the state began issuing in August.

Walczak and his legal team had been seeking to block the entire law from taking effect this fall, and contended that anything short of an outright injunction would result in some voters being disenfranchised. He said Tuesday that his legal team has not given up the fight to overturn the law for future elections as well.

But Richard L. Hasen, a professor of law and political science at University of California, Irvine, said he believes Pennsylvania undoubtedly will have a voter ID law in 2013 and beyond.

Hasen, who has tracked voter-ID laws around the country, noted that neither Simpson's decision, nor the state Supreme Court's earlier ruling that sent the case back to him, had found fault with the law's essence - only with the way it was being implemented.

Critics, many of them Democrats, had contended that the law was rushed into effect after its March passage in order to affect the outcome of the presidential election. They said the law's requirements would land hardest on minorities, the poor, the young, and the elderly - groups that tend to vote Democratic.

The Voter ID Coalition, an amalgam of about 150 civic groups, churches, unions, and other organizations put together by the Philadelphia watchdog group Committee of Seventy, said people had been waiting as long as three hours for voter ID cards at PennDot centers in the city.

"Most people consider visiting PennDot a horror," Committee of Seventy president Zack Stalberg said Tuesday. He said the state agency's officials "have an opportunity now to help voters and change their image, if they can stop acting like a bone-headed bureaucracy."

The law's Republican backers have argued all along that the voter-ID law was simply a way to crack down on voter fraud and ensure fair elections. They said they wrote the law so that voters without a valid driver's license or other acceptable ID could get one for free through PennDot.

But the law's application has been far from smooth. Many voters discovered that they could not obtain the free IDs, usually because they did not have the required documents - such as a Social Security card and birth certificate - to get one. State officials then began offering the voting-only cards, but some voters reported problems obtaining those as well.

"I think the judge made the right decision here," Hasen, the law professor, said Tuesday. "The state just is not ready."